Fifteen years ago, the Supreme Court of Canada decided that secondary picketing was generally lawful unless it was accompanied by wrongful conduct such as violence or blockading. This meant that union members and striking employees could picket businesses that were not part of a labour dispute in an effort to put pressure on the struck employer. The Supreme Court's decision in R.W.D.S.U Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd. (PDF) overturned forty years of law preventing unions from engaging in secondary picketing.
The Pepsi-Cola decision left it open for governments to enact laws that restrict the ability to picket places other than the struck location. The laws vary across Canada. The British Columbia Labour Relations Code (the "Code") is an example of legislation that still prohibits secondary picketing. It is unlawful in B.C. unless the striking union can obtain a declaration that the secondary business or location has allied itself with the struck employer, and is rendering undue assistance to the employer. Suppliers and other affected businesses are allowed to arrange their affairs to work around strikes and lockouts, without being declared an ally. That is, "self-help" is permitted.
A recent decision of the BC Labour Relations Board has analyzed self-help in a new way, making it more difficult to avoid secondary pickets in B.C. The Board discussed the requirements for declaring an entity "an ally" of the struck employer for the purpose of picketing, in Canada Bread Company, Limited -and- Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, Local Union No. 468, BCLRB No. B101/2017 (PDF).
The Union had been on strike after Canada Bread locked out its employees at its Langley Bakery. It is a large institutional bakery that services much of the grocery industry in Western Canada.
The Union applied under Section 65 of the "Code" to have Canada Bread's distribution centre declared an ally of the bakery such that union members would be permitted to picket there. The company opposed the application, arguing that the distribution centre had neither changed its relationship with the bakery, nor was performing work for the benefit of the bakery.
The bakery and the distribution centre are separate operations, with separate management. The distribution centre has a different union than the bakery. In normal circumstances, the distribution centre receives just over 50 percent of its volume from the bakery. However, to offset the shortage in volume from the bakery during the strike, Canada Bread developed a 'robust contingency supply plan'. It increased the volume of products received from other bakeries. Because of this, the Union argued that the Company was using the distribution centre to avoid the economic consequences of the strike.
Canada Bread argued that, to be considered an "ally" under the Code, the distribution centre must be acting for the benefit of the bakery specifically and not the Company generally. It relied on the fact that the distribution centre continued to accept whatever product the bakery sent, as before. The distribution centre had not changed its role with respect to the bakery, and had no specific intent to assist the bakery in resisting the strike.
The Board disagreed. Although it found that the bakery and distribution centre are separate and distinct operations and thus separate employers for purposes of the Code, the distribution centre was nonetheless found to be an ally of the bakery. It is not necessary that the allied party intend to assist the struck employer in resisting the strike. Nor is it material whether the assistance being given is struck work.
In this case, the distribution centre had been receiving an increased volume of products from Edmonton, Calgary and Winnipeg to offset the shortage from the struck bakery. The Board found that the distribution centre's actions were aimed at fulfilling orders and supplying customers for the bakery, not preserving its own interests. The distribution centre's actions insulated the bakery from economic pressure and allowed it to resist the strike. Using this logic, the Board found that the distribution centre had altered its relationship with the bakery, leading it to declare the distribution centre an ally of the bakery under Section 65 of the Code. This meant that picketing at the distribution centre was permitted.
This decision highlights the complexities in contingency planning for businesses facing a potential labour disruption. Regardless of the jurisdiction in which you operate, managers should carefully plan supply sourcing and business continuity to facilitate a positive outcome in the event of a labour dispute.